Criminal Cases Against Police Show Why Civil Forfeiture Must Be Abolished

Without ever having to secure a criminal conviction, or even file charges, law enforcement agencies can permanently confiscate cash, cars, homes and other valuables. Known as civil forfeiture, the arrangement has been blasted as “policing for profit” and “little more than state-sanctioned theft.” Now prosecutors have brought criminal cases against law enforcement officers, accusing them of theft and extortion.

On March 31, a former Virginia deputy was convicted for embezzling more than $229,000 in asset forfeiture funds. “Designated as the deputy responsible for overseeing the asset forfeiture program,” Frank Michael Pearson was able to “steal money that had been seized by other members of the Loudoun County Sheriff’s Office for potential asset forfeiture,” a release by the U.S. Department of Justice recounted. Pearson now faces up to 10 years imprisonment for each of his four counts of theft.

Yet in Virginia and 42 other states, police and prosecutors can retain anywhere from 45 to 100 percent of forfeiture proceeds—a clear incentive to seize. Apparently Pearson took the “eat what you kill” mindset on confiscating property one step too far.

The same day Pearson was convicted, an Oklahoma grand jury indicted Wagoner County Sheriff Bob Colbert and Deputy Jeff Gragg on three felony counts, including bribery and extortion. Back in December 2014, Gragg pulled over Torell Wallace and a 17-year-old passenger. During the traffic stop, the deputy reportedly searched the car and found $10,000 in cash. Gragg arrested both individuals for “possession of drug proceeds,” a felony.

“After being taken to the Wagoner County Jail, Colbert and Gragg accepted a bribe from Wallace and the passenger when Wallace disclaimed any interest in the cash,” the state’s attorney general alleged in a release. Both Wallace and the minor were released, while “the cash was placed in a Sheriff’s Drug Forfeiture account.”

Colbert and Gragg could each face up to 25 years in prison and fines as high as $10,000 if convicted. The sheriff has already been suspended from his duties. As The Oklahomansummarized it, Colbert’s attorney defended the traffic stop as “a routine drug interdiction and a lawful cash seizure of drug funds.”

She certainly has a point. The traffic stop described in the indictment is unfortunately not an uncommon scene on America’s highways. As portrayed in heartbreaking detail by The New Yorker and The Washington Post, police have pulled over motorists (many of whom are immigrants, low-income or people of color), seized their cash and then intimidated them to sign roadside waivers disclaiming ownership, or else face criminal prosecution.

In Philadelphia, law enforcement egregiously practiced “seize and seal,” whereby police would seize a home and seal it, preventing the owners from returning home. To unseal the property, homeowners—who often were never accused of any wrongdoing—would typically have to agree to waive key legal defenses, including the right to trial, Pennsylvania’s defense for innocent, third-party owners and their ability to challenge the forfeiture as an “excessive fine” under the state and federal constitutions. Records obtained by the Institute for Justice, which sued the city for its “civil forfeiture machine,” show that Philadelphia forfeited nearly 1,200 homes and other real estate properties between 2002 and 2012.

Plaintiffs Markela and Chris Sourovelis embrace as the stand beside attorney Darpana Sheth during a news conference Tuesday, Aug. 12, 2014, on Independence Mall in Philadelphia. A lawsuit was filed in federal court in Philadelphia alleging that the city has been seizing and selling millions in property from city residents, including those not charged with crimes. (AP Photo/Matt Rourke)

Last November, Philadelphia agreed to a settlement agreement to strictly curtail this policy and to dismiss existing seize and seal orders. The rest of IJ’s lawsuit, including challenging the city’s incentive in forfeiture, is still ongoing.

While Philadelphia’s actions were widely condemned (including on a memorable episode of Last Week Tonight with John Oliver), one prosecutor was apparently inspired. Speaking at a vehicle forfeiture conference in 2014, Pete Connelly, then the city attorney for Las Cruces, N.M., praised the city’s program as a “gold mine.” “Just think what you could do as the legal department,” he added. “We could be czars.”

Nor is Connelly alone with his unabashed support for aggressive forfeiture laws. Sean McMurtry, a prosecutor in New Jersey, once taught a course on civil forfeiture, with a lesson plan that advised, “IF IN DOUBT…TAKE IT!” Not one for subtlety, Ron Hain, an Illinois deputy, self-published a book on highway interdiction and asset forfeiture, where he called for “turning our police forces into present-day Robin Hoods.”

Given such reckless attitudes towards police profiteering, it’s no surprise forfeiture has skyrocketed. Back in 1986, the year after the Justice Department established its Assets Forfeiture Fund, it had $93.7 million in deposits. By 2014, that number had topped $4.5 billion. On the state level, data is patchier, but according to an Institute for Justice report, “total annual forfeiture revenue across 14 states more than doubled from 2002 to 2013.”

Forcibly redistributing all that wealth from the law-abiding to police coffers may even harm the economy at large. In its 2015 report on global economic freedom, the Fraser Institute noted that the United States was the “world’s freest OECD nation” up until 2000. But economic liberty has been on the decline ever since, with “property rights and the rule of law” in particular “under attack in the United States.” One “contributing factor” to this erosion, the Fraser Institute posited, could be “the expansion in civil asset forfeitures.”

Because the financial incentive is so strong, even if prosecutors were willing to bring more indictments against those who illegally gain from forfeiture, that would be no substitute for systemic reform. Lawmakers must curtail policing for profit. Any and all proceeds should be directed away from police budgets and towards either the general fund or a neutral fund, like education. Requiring a criminal conviction and banning roadside waivers would go far in protecting due process rights for property owners.

Civil forfeiture clearly has the power to tempt law enforcers to become law breakers. Theft is theft, even if it’s done by someone wearing a badge.